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THE WRONGFUL DEATH COMPLAINT ALLEGED PORT AUTHORITY WAS NEGLIGENT IN FAILING TO INSTALL SUICIDE-PREVENTION BARRIERS ON THE GEORGE WASHINGTON BRIDGE; THE COMPLAINT STATED A CAUSE OF ACTION AND SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, over a two-justice dissent, determined the complaint alleging the Port Authority was negligent for failure to install suicide-prevention barriers on the George Washington Bridge should not have been dismissed. Plaintiff’s decedent had jumped off the bridge. Supreme Court held the maintenance of the bridge was a governmental function and there was no special relationship between Port Authority and plaintiff’s decedent. The Second Department held the complaint alleged Port Authority was acting in a proprietary capacity and therefore was subject to ordinary principles of negligence:

… [T]he complaint did not need to allege that the Port Authority owed a special duty to the decedent, as opposed to the public generally, as the Port Authority did not establish that it was acting in a governmental capacity in maintaining the bridge … . Since the complaint has alleged facts that support a determination that the Port Authority was acting in a proprietary capacity, the Port Authority would be subject to the same principles of tort law as a private landowner, and as such, the complaint states a cause of action … . Here, accepting all facts alleged in the complaint as true for the purposes of this motion, the Port Authority’s remaining contentions likewise do not establish that the complaint fails to state a cause of action. Perlov v Port Auth. of N.Y. & N.J., 2020 NY Slip Op 08092, Second Dept 12-30-20

 

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A GENERAL BUSINESS LAW 349 DECEPTIVE BUSINESS PRACTICE ACTION AGAINST THE CITY SOUNDS IN TORT TRIGGERING THE NOTICE OF CLAIM REQUIREMENT (SECOND DEPT).

The Second Department noted that a deceptive business practice cause of action pursuant to General Business Law 349 sounds in tort. The GBL 349 cause of action against the city did not state a cause of action because no notice of claim was filed:

Administrative Code of the City of New York § 7-201 and General Municipal Law § 50-e together require a plaintiff, in order to bring an action sounding in tort against the City of New York, to serve a notice of claim within ninety days after the date the claim arises … . Failure to comply with a statutory notice of claim requirement is a ground for dismissal pursuant to CPLR 3211(a)(7) for failure to state a cause of action … .

General Business Law § 349(a) prohibits “[d]eceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in this state” … . We agree with the Supreme Court’s determination that the plaintiffs’ first cause of action, which sought to recover damages for violations of General Business Law § 349, was a claim sounding in tort, and therefore was subject to the requirements of General Municipal Law § 50-e, as a cause of action sounding in fraud … . Accordingly, we agree with the court’s determination granting that branch of the defendants’ motion which was to dismiss the first cause of action due to the plaintiffs’ failure to serve a notice of claim within 90 days after the claim arose … . Singh v City of New York, 2020 NY Slip Op 08123, Second Dept 12-30-20

 

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THE PETITIONER, A PROBATIONARY POLICE OFFICER CHALLENGING HIS TERMINATION, RAISED QUESTIONS OF FACT IN THIS ARTICLE 78 PROCEEDING; THEREFORE THE SUMMARY DETERMINATION PURSUANT TO CPLR 409 WAS NOT AVAILABLE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined this Article 78 proceeding reviewing the termination of a probationary police officer (Lake) involved questions of fact rendering a summary determination pursuant to CPLR 409(b) improper:

Since Lake submitted sufficient evidence to raise a triable issue of fact as to whether the reasons put forth by the Town were pretextual, the Town was not entitled to a summary determination on the petition (see CPLR 409[b] …). To the contrary, the record presented triable issues of fact as to whether Lake’s employment was terminated in bad faith for reasons unrelated to his job performance … . Under the these circumstances, the matter should be remitted to the Supreme Court, Suffolk County, for an immediate trial … . Matter of Lake v Town of Southold, 2020 NY Slip Op 08064, Second Dept 12-30-20

 

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A CONTRACTOR ALLEGED TO HAVE WORKED ON THE AREA OF THE ROADWAY WHERE PLAINTIFF SLIPPED AND FELL AND THE MUNICIPALITY DID NOT ELIMINATE QUESTIONS OF FACT ABOUT THEIR LIABILITY; DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the municipality’s (Port Washington North’s) motion for summary judgment should not have been granted in this slip and fall case. The code provision requiring written notice of the dangerous condition applied to the village, not to Port Washington North, and Port Washington North did not demonstrate it did not create the condition. In addition, defendant contractor did not demonstrate it did not do any work on the roadway in the area of the slip and fall:

A contractor [J. Anthony] may be liable for an affirmative act of negligence which results in the creation of a dangerous condition upon a public street or sidewalk … . Thus, in moving for summary judgment, J. Anthony had the burden of establishing, prima facie, that it did not perform any work on the portion of the roadway where the accident occurred or that it did not create the allegedly defective condition that caused the plaintiff’s injuries … . However, J. Anthony failed to satisfy its burden … .The failure to do so requires the denial of that branch of J. Anthony’s motion which was for summary judgment dismissing the complaint insofar as asserted against it, regardless of the sufficiency of the opposing papers … .

Port Washington North moved for summary judgment on the ground, inter alia, that it had not received prior written notice of the alleged defect which caused the plaintiff’s injuries. … Since the prior written notice provision specifically limits the notice requirement to “street[s]” located “within the Village” (Village Code §§ 143-23, 143-22), this provision is not applicable to the facts here, as the location of the accident was not within Port Washington North. Moreover, Port Washington North failed to meet its prima facie burden of eliminating all triable issues of fact regarding its role in creating the allegedly defective condition … . Downing v J. Anthony Enters., Inc., 2020 NY Slip Op 08038, Second Dept 12-30-20

 

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CLAIMANT’S APPLICATION TO SERVE A LATE NOTICE OF CLAIM IN THIS SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED, DESPITE THE ABSENCE OF A VALID EXCUSE FOR THE DELAY (THIRD DEPT).

The Third Department, reversing Supreme Court, determined petitioner’s application to serve a late notice of claim with respect to one of the two defendants (Albany Port District Commission) should have been granted. Although the excuse for failure to file was inadequate (ignorance of the requirement), the defendant had timely notice of the claim by virtue of surveillance cameras and an incident report, and defendant was not prejudiced by the delay:

… [M]embers of the Port Security Department came to the scene of the accident soon after petitioner’s fall to check on his condition and were able to observe the area where petitioner fell. Petitioner also averred that the Port Security Department was located approximately one hundred feet from where he fell and that there are surveillance cameras on the Port Security Department office building that are pointed at the area where petitioner fell. Petitioner also proffered an incident report form completed by one of the members of the Port Security Department who came to the scene the day of the accident. This form reflects the location of petitioner’s fall and that petitioner fell on ice, injured his back and was transported to the hospital by an ambulance. Thus, the Port had “more than merely generalized awareness of an accident and injuries” sufficient to establish actual notice … . …

… [T]he … standard requires a petitioner to initially “present some evidence or plausible argument that supports a finding of no substantial prejudice” … . Here, petitioner met this burden by showing … that the Port had actual notice of the incident sufficient to allow it to investigate the accident shortly after it occurred … . Additionally, petitioner submitted photographs and a video that suggest that the condition has not substantially changed from its appearance at the time of the accident. Matter of Perkins v Albany Port Dist. Commn., 2020 NY Slip Op 07963, Third Dept 12-24-20

 

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THE VILLAGE DEMONSTRATED IT DID NOT HAVE WRITTEN NOTICE OF THE ROAD DEFECT WHICH ALLEGEDLY CAUSED PLAINTIFF’S BICYCLE ACCIDENT, BUT IT FAILED TO DEMONSTRATE IT DID NOT CREATE THE DEFECT; THEREFORE THE VILLAGE’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the village’s motion for summary judgment in this bicycle-related injury case should not have been granted. Plaintiff alleged a road defect caused his accident. The village demonstrated it did not have written notice of the defect but failed to demonstrate it did not create the defect:

“[T]he prima facie showing which a defendant must make on a motion for summary judgment is governed by the allegations of liability made by the plaintiff in the pleadings” … . Here, the plaintiffs alleged in their complaint that the Village affirmatively created the defect that caused the accident. Therefore, in order to establish its prima facie entitlement to judgment as a matter of law, the Village had to demonstrate, prima facie, both that it did not have prior written notice of the defect, and that it did not create the defect … . The Village established, prima facie, that it did not have prior written notice of the alleged defect, but it failed to establish, prima facie, that it did not affirmatively create the alleged defect … . Therefore, the burden never shifted to the plaintiffs to submit evidence sufficient to raise a triable issue of fact … . Holleran v Incorporated Vil. of Floral Park, 2020 NY Slip Op 07871, Second Dept 12-23-20

 

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THE NYC BOARD OF HEALTH’S RESOLUTION MANDATING VACCINATION AGAINST MEASLES IS VALID AND LAWFUL; THE OBJECTIONS RAISED ON RELIGIOUS GROUNDS WERE REJECTED BECAUSE THE RESOLUTION DID NOT SINGLE OUT, TARGET OR EVEN MENTION RELIGION (SECOND DEPT).

The Second Department, in a full-fledged, comprehensive opinion by Justice Scheinkman, determined the resolution by the NYC Board of Health mandating vaccination against measles was lawful and valid and did not violate petitioners’ freedom of religion. As a threshold matter the court considered the matter as an exception to the mootness doctrine, because measles outbreaks are likely to occur in the future:

On April 17, 2019, the Board of Health of the Department of Health and Mental Hygiene of the City of New York adopted a resolution stating that, due to the active outbreak of measles among people residing within certain areas of Brooklyn, any person over the age of six months who was living, working, or attending school or child care in the affected areas had to be immunized against measles, absent a medical exemption. Failure to comply was made punishable by fines authorized by law, rule, or regulation, for each day of noncompliance. The plaintiffs/petitioners (hereinafter the petitioners), residents of areas covered by the resolution, challenge its validity. We hold that the resolution was lawful and enforceable, reserving, however, whether any fine imposed upon violation is excessive. The resolution was within the authority of the Board of Health of the Department of Health and Mental Hygiene to make and the resolution itself did not violate any right of the petitioners, including their freedom of religion. * * *

The petitioners profess to hold religious beliefs that hold that a healthy body should not assimilate foreign objects, including vaccine ingredients … . * * *

The Board’s resolution does not target religion or single out religion; it does not even mention religion. There is absolutely no indication that the resolution was adopted for the purpose of infringing the petitioners’ religious practices or suppressing their religious views … . The resolution treats all persons equally, whether religious or not … . The resolution does not create any favored classes at all, much less ones that are secular rather than religious. As the resolution is religiously neutral and generally applicable, it is not subject to strict scrutiny. C.F. v New York City Dept. of Health & Mental Hygiene, 2020 NY Slip Op 07867, Second Dept 12-23-20

 

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THERE IS NO CAUSE OF ACTION FOR NEGLIGENT INVESTIGATION IN NEW YORK; PLAINTIFF’S DECEDENT, A CHILD, WAS MURDERED BY MOTHER’S BOYFRIEND: THE SUIT ALLEGING THE COUNTY DID NOT ADEQUATELY INVESTIGATE PRIOR REPORTS OF CHILD ABUSE SHOULD HAVE BEEN DISMISSED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court and dismissing the complaint, determined there is no cause of action for negligent investigation in New York:

At the age of five, plaintiff’s decedent was brutally murdered by his mother’s boyfriend … . Plaintiff thereafter commenced this wrongful death action, alleging that the County of Erie (defendant), through its Child Protective Services office, had inadequately investigated multiple prior reports of child abuse and neglect concerning the decedent child. …

As defendant correctly contends, “New York does not recognize a cause of action sounding in negligent investigation” of child abuse and neglect … . “Moreover, ‘a claim for negligent training in investigative procedures is akin to a claim for negligent investigation or prosecution, which is not actionable in New York’ ” … . Hart v County of Erie, 2020 NY Slip Op 07779, Fourth Dept 12-23-20

 

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FAILURE TO FILE A NOTICE OF CLAIM AGAINST THE NEW YORK TRANSIT AUTHORITY (AS OPPOSED TO THE CITY OF NEW YORK) IN THIS SLIP AND FALL CASE, AND THE FAILURE TO APPLY FOR PERMISSION TO FILE A LATE NOTICE OF CLAIM, GAVE RISE TO THIS LEGAL MALPRACTICE AND JUDICIARY LAW 487 ACTION WHICH SHOULD NOT HAVE BEEN DISMISSED; THE DISTINCTION BETWEEN THE TWO CAUSES OF ACTION EXPLAINED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the legal malpractice and Judiciary Law 487 causes of action against one of two groups of attorney-defendants should not have been dismissed. The first group of attorneys (the Schneider defendants) failed to file a timely notice of claim against the New York Transit Authority (NYTA) in this slip and fall case. Then plaintiff retained the second group of attorneys (the Kletzkin defendants) and the action was dismissed with prejudice. Then plaintiff sued both groups of attorneys for legal malpractice and for violations of Judiciary Law 487. Supreme Court granted the Kletzkin defendants motion to dismiss and denied the Schneider defendants’ motion to dismiss. The facts were not discussed, but the court noted the difference between a legal malpractice and a Judiciary Law 487 cause of action:

… [T]he plaintiff adequately pleaded the cause of action alleging legal malpractice against the Kletzkin defendants and the Schneider defendants. Contrary to the contentions of those defendants, neither conclusively established that an application for leave to serve a late notice of claim or to deem the late notice of claim timely served upon the NYCTA nunc pro tunc would have been futile … .

Contrary to the Kletzkin defendants’ contention, the complaint adequately states a cause of action to recover damages for violation of Judiciary Law § 487. Contrary to the Schneider defendants’ contention, the cause of action alleging violation of Judiciary Law § 487 is not duplicative of the cause of action alleging legal malpractice. “A violation of Judiciary Law § 487 requires an intent to deceive (see Judiciary Law § 487), whereas a legal malpractice claim is based on negligent conduct” … . Bianco v Law Offs. of Yuri Prakhin, 2020 NY Slip Op 07849, Second Dept 12-23-20

 

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THE COUNTY MUST REIMBURSE THE TOWNS FOR UNPAID PROPERTY MAINTENANCE AND DEMOLITION CHARGES (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, reversing the Appellate Division, determined Monroe County was required to credit unpaid property maintenance and demolition charges assessed by the Town of Irondequoit and the Town of Brighton. The county is required to deduct the unpaid town charges from the sales tax owed by the towns to the county:

Requiring that these charges be credited pursuant to section [RPTL] 936 accords with the overall structure for the enforcement of property tax liens, including the legislative grant of exclusive authority to counties in RPTL 1123 to commence in rem proceedings to foreclose on real property to “enforce the payment of delinquent taxes or other lawful charges which have accumulated and become liens against certain property” … , permitting counties—but not towns—to initiate proceedings to enforce the types of liens at issue here. Indeed, Town Law § 64 (5-a) directs that these charges “levied” on “real property” are to “be collected in the same manner and at the same time as other town charges” by virtue of the normal process of levying and collecting town property taxes, in which towns make the first attempt at collection and after which enforcement shifts to the county … . It appears that the Legislature, recognizing that towns have little power to recoup their costs for unpaid real property tax liens, has shifted the risk of loss to counties, which are in the best position to recover the funds through in rem foreclosure proceedings. The same considerations apply to blighted properties, where the Legislature may have presumed that counties are in a better position to recover charges imposed on real property pursuant to the Town Law … . Thus, the County was required to credit the maintenance and demolition charges, and its determination to the contrary should have been annulled. Matter of Town of Irondequoit v County of Monroe, 2020 NY Slip Op 07689, CtApp 12-22-20

 

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